In almost every lease or rental agreement, there will be some requirement that the tenant pay a security deposit to the landlord. Landlords and tenants often disagree over the amount of the deposit that should be returned to the tenant at the end of a rental term. Landlords are required to inform tenants of the reason any amount of the security deposit is not being returned to the tenant by providing an itemized list of deductions. If the landlord does not return a portion of the security deposit and does not provide an itemized list articulating the reason for the deduction, tenants should request one as the landlord must inform the tenant of any withholding. Additionally, a landlord may try to charge a tenant other fees and deposits under the rental agreement that are against the law. In this section, you will find information about security deposits and other fees or deposits a landlord may try to charge you.
Under New York State law, it is unlawful for your landlord to charge certain deposits or fees, or for deposits or fees to exceed a specific amount.
Under New York State law, a landlord is not allowed to charge or collect:
Security deposits greater than one-month’s rent;
Last-month’s rent, or any other month’s rent, in advance if they have also collected a security deposit;
Cleaning fees or deposits separate from the security deposit;
Credit check or background check fees greater than the actual cost or $20.00, whichever is less;
If a tenant can provide a copy of a credit check or background check conducted within the past 30 days, the landlord must accept it and waive any fees;
If the landlord runs the credit and background checks, they must provide the tenant a copy before collecting any fees;
Application fees;
Pet deposits (if the deposit, together with any other security deposit or rent advance, exceeds one-month’s rent);
Late fees for unpaid or late rent exceeding $50.00 or 5% of the monthly rent, whichever is less; and
Fees greater than 110% of the actual costs for providing a tenant with a replacement key to their unit, for the first 3 replacement keys requested within a calendar year.
Please refer to New York General Obligations Law 7-108 (security deposits), New York Real Property Law Section 238-a (other fees), and New York Real Property Law Section 235-i (key fees).
As stated above, a landlord may not charge or collect any deposit or advance greater than the amount of one-month’s rent. Therefore, if a landlord collects a security deposit equal to one-month’s rent, they cannot also charge the tenant a rent advance, such as “last-month’s rent.” Further, a security deposit cannot be used to pay rent, except for any unpaid rent due and owed after a tenant moves out. Additionally, a landlord cannot request a non-refundable security deposit.
After a tenant moves out, the security deposit must be returned to the tenant within 14 days. If any amount has been deducted from a deposit, the landlord must send the tenant an itemized list of these deductions within the same 14 days. If a landlord does not return the deposit or provide an itemized list of deductions within the 14-day period, the landlord forfeits any right to keep the deposit, regardless of how damaged the apartment is or how much rent may be owed, and must return the entire amount to the tenant. Tenants may bring a claim in Small Claims court to recover the security deposit from the landlord. Please refer to New York General Obligations Law 7-108.
If a property has 6 or more rental units, the landlord must place the security deposit in an interest-bearing account and return any interest earned on the deposit to the tenant. In this situation, the landlord is allowed to keep one-percent of the total amount of the deposit as an “administrative fee.” Please refer to New York General Obligations Law 7-103.
A landlord CAN withhold or deduct from a tenant’s security deposit for:
Damage a tenant causes to the rental unit beyond ordinary wear and tear;
Excessive cleaning, trash removal, or removing or storing a tenant’s furniture or other personal belongings; or
Unpaid rent or utility charges payable directly to the landlord under the lease.
A landlord CANNOT withhold or deduct from a tenant’s security deposit for:
Damage or disrepair in the unit that is not the tenant’s fault or does not go beyond ordinary wear and tear;
Damage caused by a prior tenant; or
Cleaning that prepares the space for new tenants, which would reasonably need to happen after every move-out, like carpet cleaning, painting, repairing minor damage, and removing dirt or dust.
Remember, even if your landlord is deducting from your security deposit for a legitimate reason, they must give you an itemized list of any deductions within 14 days of your move-out, or else return your full deposit. Please refer to New York General Obligations Law 7-108.
Disagreements between tenants and landlords over security deposits are very common. It is important for tenants to document the condition of the rental unit before moving in and moving out.
Landlords are required to offer an inspection of the rental unit before a tenant moves in. It is best to ask for an inspection if a landlord doesn’t offer one. After the inspection, the landlord is required to create a written agreement listing any damages to the apartment that existed before the tenant moved in. If there is any dispute later about the damage, this agreement can be used as evidence. Please refer to New York General Obligations Law 7-108.
It is important to carefully inspect the apartment. You may want to use a checklist to note any problems you see. It is also a good idea to take pictures and videos of any damage or defects. For example, if you see a hole in the wall or a cracked window, you may want to make a note of it and take a picture. It is important to inspect the entire rental unit, including, but not limited to:
All parts of any outdoor spaces, including garages, porches, balconies, entrances, exits, or walkways;
All parts of every room in the rental unit, including the walls, floors, ceilings, doors, door frames, locks, and windows in any bedrooms, bathrooms, common areas, kitchens, closets, or other spaces; and
All parts of any appliances, fixtures, or furniture provided with the apartment, including refrigerators, stoves, microwaves, dishwashers, cabinets, counters, shelves, sinks, toilets, showers, baths, lights, light switches, outlets, beds, mattresses, couches, tables, chairs, rugs, mirrors, air conditioning units, heaters, and vents.
Any notes, photos, and videos should be included in a written agreement with your landlord. Landlords may have a standard form or checklist they regularly use for these inspections. If a landlord already has a form or checklist, it is important to add any additional damages or defects that might not be covered by their form. Taking these steps may help protect a tenant from improper charges to their security deposit when they move out.
If a tenant gives a landlord at least two-week’s notice before they move out, the landlord is required to notify the tenant in writing of the tenant’s right to request an inspection before moving out. A tenant has a right to be present at the inspection. If your landlord does not offer it, you can request the inspection yourself.
The inspection should happen between one and two weeks before the tenant moves out. After the inspection, the landlord is required to create an itemized list noting any damages to the rental unit that the landlord intends to charge the tenant for. This provides tenants with the opportunity to fix any damages or defects themselves before moving out.
Again, a landlord must return a security deposit or provide an itemized list of any charges to the security deposit within 14 days after the tenant has moved out.
Please refer to New York General Obligations Law 7-108.
Landlords often wrongfully withhold or deduct from a tenant’s security deposit, or fail to return the deposit or provide itemized lists of charges within 14 days. If this happens, the first step a tenant could take would be to send a letter informing the landlord of the wrongful withholding. A tenant may want to tell the landlord they will sue them in small claims court if they do not return the wrongfully withheld amounts by a certain date
If a landlord refuses to return a security deposit, or if the landlord and tenant disagree about how much of the deposit should be withheld, both sides may want to consider mediation. Mediation allows both sides to discuss their disagreement with a trained professional. Ithaca tenants can utilize the Community Dispute Resolution Center for help coming to an agreement with their landlord. For more information, please visit https://www.cdrc.org/.
Finally, tenants can sue landlords in small claims court if the landlord is wrongfully withholding a security deposit. In these lawsuits, the landlord has to prove that they are entitled to withhold a security deposit. If a tenant wins a lawsuit regarding a security deposit, the judge can award punitive damages if the landlord is violating the law on purpose. For more information, please refer to the Small Claims Court section.
If a landlord is wrongfully withholding one tenant’s security deposit, they are probably doing it to other tenants as well. For more information on how to work together with other tenants to assert your rights, please refer to the Organizing section.
A landlord may be able to deduct from a tenant’s security deposit for disability-related modifications the tenant made or had the landlord make to the unit. For more information, please refer to the Disability-Related Laws section.
This guide is a living document, and may be subject to change. It contains general information on your rights as a tenant in upstate New York, and is not a replacement for legal advice from an attorney. To get specific legal advice or representation in court, Tompkins County residents can speak to the Tenants Legal Hotline at (607) 301-1560 or visit https://ithacatenantresources.org/tlh or contact Legal Assistance of Western New York (LawNY) at 607-273-3667.
